IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADOJudge Robert E. Blackburn
Civil Case No. 10-cv-01546-REB-CBSTHE DIRECT MARKETING ASSOCIATION,Plaintiff,v.ROXY HUBER, in her capacity as Executive Director, Colorado Department ofRevenue,Defendant.
ORDER CONCERNING CROSS MOTIONS FOR SUMMARY JUDGMENTBlackburn, J.
This matter is before me on the parties’ cross motions for summary judgment: (1)
Plaintiff’s Motion for Summary Judgment as to Counts I and II Alleging Violationsof the Commerce Clause
[#98]
1
; and (2)
Defendant’s Motion for Partial SummaryJudgment - Counts I and II (Commerce Clause)
[#99], both filed May 6, 2011. Theparties both filed responses [#100 & #101] and replies [#102 & 103].
2
I grant theplaintiff’s motion, and I deny the defendant’s motion.
I. JURISDICTION & STANDING
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
1
“[#98]” is an example of the convention I use to identify the docket number assigned to aspecific paper by the court’s case management and electronic case filing system (CM/ECF). I use thisconvention throughout this order.
2
The issues raised by and inherent to the cross-motions for summary judgment are fully briefed,obviating the necessity for evidentiary hearing or oral argument. Thus, the motions stand submitted on thebriefs.
Cf.
F
ED.
R. C
IV.
P. 56(c)
and
(d)
.
Geear v. Boulder Cmty. Hosp
.,
844 F.2d 764, 766 (10thCir.1988) (holding that hearing requirement for summary judgment motions is satisfied by court's review ofdocuments submitted by parties).
Case 1:10-cv-01546-REB-CBS Document 105 Filed 03/30/12 USDC Colorado Page 1 of 22
Although the defendant challenges the plaintiff’s standing to pursue certain of its claims,the defendant does not challenge the plaintiff’s standing to present its claims under theCommerce Clause. I conclude that the plaintiff has standing on these claims. Theparties seek summary judgment only on the claims under the Commerce Clause.Therefore, I need not and do not address standing further.
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue as to any materialfact and the movant is entitled to judgment as a matter of law. F
ED
.
R.
C
IV
.
P. 56(c);
Celotex Corp. v. Catrett
, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(1986). A dispute is “genuine” if the issue could be resolved in favor of either party.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.
,
475 U.S. 574, 586,106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986);
Farthing v. City of Shawnee
, 39 F.3d1131, 1135 (10
th
Cir. 1994). A fact is “material” if it might reasonably affect the outcomeof the case.
Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 248, 106 S.Ct. 2505,2510, 91 L.Ed.2d 202 (1986);
Farthing
, 39 F.3d at 1134.A movant who bears the burden of proof at trial must submit evidence toestablish every essential element of its claim.
See In re Ribozyme Pharmaceuticals,Inc. Securities Litigation
, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002). Once themotion has been supported properly, the burden shifts to the nonmovant to show, bytendering depositions, affidavits, and other competent evidence, that summary judgment is not proper.
Concrete Works, Inc. v. City & County of Denver
, 36 F.3d1513, 1518 (10
th
Cir. 1994),
cert. denied
, 115 S.Ct. 1315 (1995). All the evidence mustbe viewed in the light most favorable to the party opposing the motion.
Simms v.Oklahoma ex rel Department of Mental Health and Substance Abuse Services
, 1652
Case 1:10-cv-01546-REB-CBS Document 105 Filed 03/30/12 USDC Colorado Page 2 of 22
F.3d 1321, 1326 (10
th
Cir.),
cert. denied
, 120 S.Ct. 53 (1999).
III. BACKGROUND
The plaintiff, The Direct Marketing Association (DMA), asks the court to enter apermanent injunction enjoining the defendant from enforcing the notice and reportingobligations imposed on many out-of-state retailers under a Colorado law, now codifiedat §39-21-112(3.5), C.R.S. (2010) (the Act), and under the concomitant regulationspromulgated by the Colorado Department of Revenue (DOR) to implement the Act, 1Colo. Code Regs. § 201-1:39-21-112.3.5 (2010) (the Regulations).
3
In general, the Actand Regulations require retailers that sell products to customers in Colorado, but do notcollect and remit Colorado sales tax on those transactions, to report certain informationabout the customers’ purchases from the retailer to each customer and to the ColoradoDepartment of Revenue.The DMA is an association of businesses and organizations that market productsdirectly to consumers via catalogs, magazine and newspaper advertisements,broadcast media, and the internet. The Act and the Regulations will affect manymembers of the DMA. The defendant, Roxy Huber, is the Executive Director of theColorado Department of Revenue, the state agency charged with enforcing the Act andthe Regulations. The DMA alleges that certain requirements of the Act and the enablingRegulations violate the constitutional rights of many members of the DMA. The presentmotions concern the contention of the DMA that the Act and the Regulations violate therights of many of its members under the Commerce Clause of the United StatesConstitution.
U.S. Const.
art. I, § 8.
3
Copies of the Act and the Regulations are attached to the DMA’s motion for preliminaryinjunction [#15] as Exhibits 1 and 2.
3
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